COVID-19 & REAL ESTATE: Can I Evict?
NOTE: The following is from the author’s LinkedIn post, originally published on September 13, 2020. It has been updated based on recent events.
BOTTOM LINE UP FRONT: YES, in the state of Arkansas, you can evict for non-payment of rent unless your rental property has an FHA-insured mortgage or you receive a certification from your tenant that states your tenant is covered under the CDC eviction moratorium. However, in this post, we are going to discuss a possible way around the CDC moratorium.
As my firm began the process for three separate evictions this past week, we had to navigate a minefield of piecemeal regulations with varying applicability to determine whether our clients received the benefit of their contract, or the tenants received the benefit of government intervention.
Landlords across the state and nation are in the same boat. COVID-19 has impacted few industries more than the real estate industry. Of course, the nine worst words in the English language were uttered: I’m from the government, and I’m here to help. Some state governments—and even some city governments—imposed eviction moratoria of varying degrees. When some states refused to follow suit, the federal government decided it would step up to the plate. In its wake, it has left various moratoria of varying degrees and a tightrope to navigate.
The goal of this post is to give an overview of the prevailing eviction moratoria and see if we can navigate around them. If you have additional questions or need to further help in your own evictions, you can email us at email@example.com.
TO BEGIN: The State of Arkansas has not implemented any eviction moratoria. Early in the pandemic, the Supreme Court of Arkansas did have an effective moratorium on evictions by closing down the courts to hearings that were not constitutionally mandated. However, no actual moratorium has gone into effect in this state other than those instituted by the federal government.
CARES Act: EXPIRED: The CARES Act, included a 120-day federal eviction moratorium for renters who participate in federal housing assistance program, such as Section 8, or live in a property with a federally-backed mortgage. This moratorium prohibited landlords of certain rental “covered dwellings” from initiating eviction proceedings or even “charging fees, penalties, or other charges” against a tenant for the non-payment of rent. This went into effect on March 27, 2020 and ended July 25, 2020. A “covered dwelling” included rental units in properties (1) that participate in federal assistance programs, (2) are subject to a federally-backed mortgage loan, or (3) are subject to a federally-backed multifamily mortgage loan.
FHA Foreclosure and Eviction Moratorium: EXTENDED TO DECEMBER 31, 2020: On March 18, 2020, the Federal Housing Administration (FHA) published Mortgagee Letter (ML) 2020-04, which announced an immediate foreclosure and eviction moratorium for all FHA-insured single-family mortgages for 60 days. The FHA extended this with ML 2020-19 and again with ML 2020-27. As it currently stands, there is an absolute bar from evictions if your mortgage is FHA-insured. What is not included in the mortgagee letters is any mention of late fees and penalties for non-payment other than the initiation of the eviction. The only saving grace to this particular moratorium is that your bank cannot foreclose on you when you cannot make the payment due to lack of cashflow.
As a side note, I would not be surprised to see the FHA promulgate guidance that forces banks to tack missed payments onto the end of your mortgage when all is said and done. That is not a guarantee, so I do not advise missing payments expecting such reprieve, but it is a logical answer to the problem that the government created. (But then again, it’s the government, so expecting them to be logical may be a reach.)
CDC Eviction Moratorium: EFFECTIVE UNTIL DECEMBER 31, 2020: The CARES Act and FHA eviction moratoria only reached a portion of renters. The Centers for Disease Control (CDC) sought to change that. On September 4, 2020, the CDC promulgated regulations that banned evictions for all renters under certain conditions. Tenants seeking protection under the moratorium must take direct action and submit a declaration, under the penalty of perjury, stating their inability to pay rent with specific supporting facts, including:
the tenant’s efforts to obtain government assistance;
the tenant’s income (only applies to individuals earning less than $99,000 and couples earning less than $198,000);
the tenant’s inability to pay rent due to loss of income, work, or significant medical expenses;
the tenant’s efforts to try to make full or partial rent payments; and
whether the eviction would likely cause the tenant to live in a homeless shelter or in close quarters with others where COVID might proliferate.
If you received no such statement, and you do not have a FHA-insured mortgage, you should be able to evict your tenant. You may receive the certification after you serve your 3-day notice or after you serve the complaint for unlawful detainer, but this begs the question as to what “efforts to try to make full or partial rent payments” the tenant actually undertook. (See the discussion below for more on this.) One problem you may have is educating your sheriff’s office. This week, we were met with “I didn’t think you were allowed to evict anyone right now.” A lawyer who understands the current state of eviction moratoria can help navigate those tricky waters. Email the Davis Firm at firstname.lastname@example.org if you need assistance with this.
What do you do if you receive a certification? First things first, rent continues to accrue and be due as do penalties and fees. We all know that that is a farce as anyone who can’t pay their rent today is not going to be able to pay 4x their rent in January and any action to collect will be like trying to get blood from a turnip. Next, you need to consider the penalties. If you evict a “covered person” then you may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law. An organization violating this Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death or as otherwise provided by law. The U.S. Department of Justice may initiate court proceedings as appropriate seeking imposition of these criminal penalties.
CAN I STILL EVICT? The truth is that anytime the government gives leeway, someone will abuse it. It is no different here. Someone is going to send the certification even when he, she, or they do not meet the criteria. Does that mean you are SOL? Well, maybe. But here are my thoughts anyway:
The term “under penalty of perjury” implies that the qualification of a “covered person” under the CDC Moratorium is a rebuttable presumption. Meaning, it is your obligation to prove they are lying in their certification. Further, an eviction does not occur upon the filing of an action for unlawful detainer, it occurs when the court grants the unlawful detainer action and the sheriff executes it. The CDC guidance does not preclude the initiation of eviction proceedings like the CARES Act does, it precludes actual evictions. In theory, you can still initiate the action and produce to the Court the certification that was delivered to you with your complaint for unlawful detainer with an allegation in your complaint that the tenant lied on their certification.
In Arkansas an eviction for non-payment of rent is commenced by sending the required notice. If nothing happens, you file and serve a complaint for unlawful detainer. If the tenant does not object to the complaint, then you will get your eviction. By attaching the certification and alleging that they lied. You need to be able to prove this or it may be deemed an abuse of process. In doing this, you are, in essence, filing the tenant’s objection for them and forcing the Court to hold a hearing. I would even state in your complaint that you are requesting a hearing so that there is no confusion. At the hearing, you can put on evidence as to why the tenant does not qualify as a “covered person” under the CDC eviction moratorium and allow the judge to interpret the law against the facts.
Now to be a typical lawyer: I do need to state that the foregoing is not legal advice for your specific situation, neither is it guaranteed to work. Each situation is unique and most people who invoke the CDC guidance are truly covered persons. If landlords attempt to use this technique too frequently, you will find judges who just stop setting hearings for it. Only attempt this under three conditions: (1) you have a tenant you TRULY believe is abusing the moratorium; (2) you believe that you can prove it; and (3) you use a qualified lawyer who can advise if they believe this plan works in your case. Also, know that this increases the cost of eviction proceedings and plan accordingly. We can evaluate your eviction and advise you as to whether we believe this is a good and cost-effective way to evict in your given circumstance. Email email@example.com to set up a consultation.
I know that this has been a long post, and I hope that it has been fruitful for you, but before I let you go, I would like to briefly address one other issue. If your tenant has not given the required certification, you may want to include that information in your complaint for unlawful detainer to document that you have not received it. There is a lot of misinformation going around regarding eviction moratoria and you may even have to educate your judge (respectfully, of course).
My best wishes to you in your real estate endeavor, especially in these hard times. If you need real estate and business legal guidance, please do not hesitate to reach out to us at firstname.lastname@example.org or text me at (501) 650–8563.
At least two federal lawsuits are currently underway challenging the authority of the CDC to pass such a sweeping order. In one such suit, The National Apartment Association joins New Civil Liberties Alliance in claiming that the moratorium “violates the U.S. Constitution because the CDC has not identified any act of Congress that confers upon it the power to halt evictions or preempt state landlord-tenant law.”
Essentially, the claim is one of separation of powers and administrative law as well as federalism (that states are independent sovereigns and retain all power not granted to the federal government in the United States Constitution, such as through the interstate-commerce clause.) We will be watching this issue and will keep you up-to-date of any changes.
The long and short of it is, that the moratorium still applies in limited circumstance. If you have any questions as to whether your eviction is allowed, email email@example.com or text me at (501) 650-8563.
Jason Davis is the owner and founder of the Davis Firm, PLLC—a small business law firm in central Arkansas. Jason’s primary practice area is business contract litigation where he works to protect small business owners from being taken advantage of by clients and business partners. A licensed real estate agent, Jason also practices real estate law where he works with real estate investors and agents from representation in complex real estate transactions to evictions. Jason has a Juris Doctor from the William H. Bowen School of Law and a Bachelors of Arts from UA-Little Rock in Political Science. Jason lives in Little Rock, Arkansas with his wife and two sons. In his free time, he enjoys golf, cycling, and reading.